Ofcom ups the ante on nuisance calls

Ofcom, which has powers under ss 128-130 of the Communications Act 2003 to take action in respect of “persistent misuse of electronic communications services” and has previously exercised these powers to target abandoned and silent calls, has responded to an October 2013 report by an All Party Parliamentary Group (“APPG”) on the unsolicited marketing industry, which had a lot to say about nuisance calls.

Although it covers similar ground, the APPG report is not to be confused with the report on nuisance calls published on 5 December 2013 by the House of Commons Culture, Media and Sport Select Committee. Marketinglaw.co.uk commented on this report here.

Ofcom responded to a number of key points in the report, namely:

Response on recommendations to clarify the law on consent to marcoms Ofcom largely supported the MPs’ recommendations to improve compliance with the legislation relating to nuisance calls. Ofcom also stated that the Information Commissioner’s Office (“ICO”) is to consider making a business case to the Department of Culture, Media and Sport to clarify the laws on consent to marketing communications. Ofcom strongly supports this proposal, saying that many nuisance calls are likely to be legal as consumers have given their permission to be contacted, without realising that they have done so, thereby unintentionally overriding their registration with the TPS “do not call” register. ICO has also used this forum to make various different recommendations to improve compliance such as an accreditation scheme and a requirement for persistent offenders to have their data management systems audited.

Response on proposal to make caller line identification available free of charge Ofcom responded to the MPs’ suggestion that caller line identification and caller display should be provided free of charge by citing their existing publication of different caller providers’ prices for caller display. This illustrates Ofcom’s attitude in this area, which was largely to cite its pre-existing guidance rather than to react positively to the changes suggested by the MPs’ report. Similarly, Ofcom’s response to the introduction of a short code for reporting nuisance calls has been largely negative.

Recommendations to make reporting easier and more effective. Ofcom announced that it is are already working with ICO in relation to establishing a single point for collection of all intelligence data related to nuisance calls. It has also asked the Government to enable better sharing of information between ICO and Ofcom by changing the Communications Act 2003. The Government is thought to have expedited these legislative changes as a result.

Recommendations to protect and empower consumers. Ofcom intends to discuss the proposal for telecoms companies to block numbers known to be making nuisance calls and pilot network level solutions to block nuisance calls with BT. However, Ofcom stated that they would be unable to use the money raised from fines for nuisance calls to create a model for call blocking technology to help protect vulnerable consumers: Ofcom has to give this money to the treasury. They state that they will raise this issue with the government.

Recommendations to improve the regulators’ capacity to take action. In reaction to the MPs comments on enforcement, ICO has submitted a business case to the Government to amend the threshold for ICO to be able to take action. Ofcom also states that the proposed new requirement to establish annoyance, inconvenience and anxiety (as opposed to the existing “substantial damage or substantial distress”) would be an appropriate threshold for enforcement action in respect of nuisance calls.

Call centre accreditation. There have been calls for Ofcom to provide accreditation to call centres to indicate their compliance with legislation on nuisance calls. Ofcom has responded by noting that it could not do this within its existing powers and it would require legislative changes. Under Ofcom’s existing powers, it could only apply accreditation to issues already within their remit, such as persistent misuse. A wider accreditation scheme would have to be developed alongside ICO or another independent third party.

Why this matters:

Ofcom has clarified its position and the fact that some changes, such as accreditation of call centres, would require an amendment and extension to Ofcom’s existing powers. It has taken a slightly defensive position in highlighting pre-existing guidance in certain areas rather than more critically assessing some of the proposals. It will be interesting to see how this response contributes to the current debate around the regulation of nuisance calls.

Marketers may be most concerned about Ofcom’s support for changes to the laws governing consent to marketing communications generally.